Montgomery Ward & Co.

National Labor Relations Board - Board Decisions

Apr 10, 1984

269 N.L.R.B. 904 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co., Incorporated and United
Food & Commercial Workers Union, Local 876,
AFL-CIO. Case 7-CA-21153
10 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 28 September t983 Administrative Law
Judge James M. Fitzpatrick issued the attached de-
cision. The Respondent and the General Counsel
filed exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 1 and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(1) by conducting an investigatory
interview of Ilene Poplaskie 13 August 19822 in a
manner contrary to the principles NLRB v. J.
Weingarten, Inc., 420 U.S. 251 (1975), enunciated.
We disagree.
I. FACTUAL BACKGROUND
The credited testimony establishes that 10
August the Respondent began to investigate a
shortage in the Customer Accommodation Center
of the Respondent's Gratiot Avenue store. Poplas-
kie was employed in the Customer Accommoda-
tion Center. Charles Flanagan, the loss prevention
manager of the Gratiot Avenue store, conducted
the investigation with the assistance of Greg
Porter, the loss prevention manager of the Re-
spondent's Grand River store.
On 13 August Flanagan and Porter interviewed
Poplaskie, who reasonably believed that the inter-
view could result in her discipline. Before the
interview, Flanagan determined that two union
stewards were present in the store. At no time
were the stewards asked to participate in the inter-
view.
The interview Flanagan and Porter conducted
was a lengthy, sophisticated, and thorough interro-
gation. During the course of the interview, Poplas-
1 The General Counsel and the Respondent have excepted to some of
the judge's credibility findings. The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
s All dates refer to 1982 unless otherwise noted.
kie admitted to certain improprieties, including
theft. She signed a statement admitting her guilt
and a promissory note agreeing to repay the Re-
spondent $45.
At no time during the interview did Poplaskie
request the presence of a union steward or other
representative, nor did the Respondent volunteer to
provide one. Near the end of the interview, Flana-
gan picked up the telephone to call the store opera-
tor. Poplaskie, thinking he was calling the police,
asked, "Am I going to jail, do I need a lawyer?"
Flanagan told her she was not going to jail and did
not need a lawyer at that time.
At the interview's conclusion, Flanagan called
Robert Anderson, who was in charge of the store
at the time. Anderson reviewed the statement Po-
plaskie signed and asked her if it were true. She
said it was. Anderson then terminated Poplaskie.
II. THE ADMINISTRATIVE LAW JUDGE'S
DECISION
The judge found, initially, that "Poplaskie did
not affirmatively request representation as allowed
by the Weingarten rule." He discredited her testi-
mony that she asked for a "representative" and also
found that her question concerning the need for an
attorney was insufficient to invoke her Weingarten
rights.
The judge went on to conclude, however, that
the Respondent conducted its interview of Poplas-
kie in violation of Weingarten principles, despite the
fact that she never requested representation. The
judge's conclusion was based on his finding that
the Respondent used interrogation techniques
"which easily could have prevented this confused,
intimidated, employee from making any affirmative
requests for the protection of her legal rights." He
found that Poplaskie was "not a paragon of inde-
pendent, clear, thinking and could easily be influ-
enced by the situation confronting her" and that
one of the Respondent's "apparent" motives in
conducting the interview as it did was to avoid
having a representative present. The judge also em-
phasized that the Respondent never offered to pro-
vide Poplaskie with a representative. Accordingly,
he concluded that the Respondent interfered with
Poplaskie's Section 7 right "to have mutual aid and
assistance" because its "deliberate conduct not only
threw doubt on what, if any, intentions Poplaskie
entertained respecting representation, but operated
effectively to reduce the possibility she would exer-
cise those rights."
III. ANALYSIS AND CONCLUSIONS
A proper analysis of the instant case begins and
ends with the fact that Poplaskie never requested
269 NLRB No. 156
904
MONTGOMERY WARD & CO.
representation. The Supreme Court specifically
stated in its Weingarten decision, "The right arises
only in situations where the employee requests rep-
resentation." 420 U.S. at 257. The Board consist-
ently applies this "request" requirement s in deter-
mining whether a Weingarten violation occurred.
Montgomery Ward & Co., 254 NLRB 826, 832
(1981); Appalachian Power Co., 253 NLRB 931,
932-933 (1980); Pick-N-Pay Supermarkets, 247
NLRB 1136, 1138 (1980); Greyhound Lines, 239
NLRB 849, 852 (1978).
The judge attempted to circumvent this prereq-
uisite by relying, essentially, on four findings: (1)
the Respondent did not offer to provide Poplaskie
with a representative; (2) Poplaskie was frightened
and confused; (3) the Respondent conducted an in-
tense and sophisticated interrogation; and (4) an
"apparent motive" for the interrogation techniques
the Respondent used was to avoid having a union
representative present. These findings do not obvi-
ate the need for a request.
The fact that the Respondent did not volunteer
to provide a representative for Poplaskie is irrele-
vant. An employer has no obligation under the Act
to provide a representative absent a valid request
by the employee. Coca-Cola Bottling Co., 227
NLRB 1276 (1977).
As for the second finding, the fear and confusion
an employee subjected to an investigatory inter-
view may experience is relevant in the Weingarten
context. It is relevant, however, to the underlying
reason that representation is accorded employees in
investigatory interviews. Simply stated, employees
are accorded requested representation, in large
part, because they are frightened and confused. It
simply does not follow, however, that the existence
of fear and confusion obviates the requirement that
the employee request representation before the
Weingarten protections come into play.
Similarly, the fact that employers often conduct
intense, sophisticated, and thorough interviews is
another reason that Weingarten rights exist. This
does not mean, however, that employers somehow
violate the Act when they conduct such inter-
views. Indeed, the Court in Weingarten emphasized
that the employee right involved "may not inter-
fere with legitimate employer prerogatives." 420
U.S. at 258. It is a legitimate employer prerogative
to conduct an intensive investigation into employee
theft.
a The Board does not require that the request be in a particular form,
so long as it is sufficient to place the employer on notice that representa-
tion is desired. See, e.g., Southwestern Bell Telephone Co., 227 NLRB 1223
(1977). This approach does not mean, however, that the protections of
Weingarten can be invoked without any request.
Finally, the finding that the Respondent struc-
tured its investigation in such a way that it fulfilled
its objective of keeping a union steward out of the
interview and, therefore, violated the Act, cannot
withstand scrutiny. We find no evidence to indicate
that the Respondent, in any way, acted to preclude
Poplaskie from requesting representation. The
judge's findings to the contrary are conjecture and
speculation. Again, employers are perfectly free to
conduct investigations of employee misconduct in
any manner they please so long as they do not en-
croach upon the limitations of Weingarten or any
other restriction the Act imposes. No such en-
croachments occurred here.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge.
This case is about a retail store that discharged a clerk
for dishonesty after a lengthy interrogation. The issue is
whether the store unlawfully interfered with her right to
representation during the interview. I find it did.
This proceeding began with charges filed September
10, 1982,1 by United Food & Commercial Workers
Union, Local 876, AFL-CIO (the Union), against Mont-
gomery Ward & Co., Incorporated (Respondent or Com-
pany). A complaint based on the charges issued October
21 alleging that on August 13 Respondent violated Sec-
tion 8(a)( ) of the National Labor Relations Act (the
Act) by denying employee Ilene Poplaskie the assistance
of a union or a legal representative during an interroga-
tion which resulted in her discharge for theft. In its
answer Respondent admits the jurisdictional allegations,
the identity of management officials involved, the repre-
sentative status of the Union, and the discharge of Po-
plaskie. Respondent denies she was interrogated, that she
requested representation, or that Respondent's officials
continued an interrogation following her request for rep-
resentation, and also denies generally the commission of
unfair labor practices. The case was heard before me at
Detroit, Michigan, on April 13, 1983.
Based on the entire record, including my observation
of the witnesses and consideration of the briefs filed by
the General Counsel and Respondent, I make the follow-
ing
FINDINGS OF FACT
1. JURISDICTION
Respondent is a nationwide retailer with its principal
place of business in Chicago, Illinois. It operates retail
stores throughout the country, including stores in and
around Detroit, Michigan (one of these being located at
i All dates herein are in 1982 unless otherwise indicated.
905
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
14455 Gratiot Avenue, Detroit), in which it sells at retail
hard and soft goods, and merchandise. During the calen-
dar year 1981, a representative period, Respondent re-
ceived gross revenues exceeding $500,000 in the oper-
ation of its business. It also purchased and caused to be
transported to its stores in Michigan goods and materials
valued over $500,000, of which those valued over
$100,000 were transported to its Michigan stores directly
from points outside Michigan. Respondent is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
11. THE UNION AND UNION CONTRACTS
The Charging Union is a labor organization within the
meaning of Section 2(5) of the Act and is the exclusive
bargaining representative within the meaning of Section
9(a) of the Act for employees of Respondent in an ap-
propriate unit which includes employee Ilene Poplaskie.
A local of the International Brotherhood of Teamsters
represents certain other employees of Respondent. Both
unions maintain collective-bargaining agreements with
Respondent. The Teamsters agreement specifically re-
quires that if an employee covered by that agreement re-
quests union representation during a disciplinary inter-
view, the interview shall be suspended until a representa-
tive of that union is able to participate. The Charging
Union here has no similar written provision in its collec-
tive-bargaining agreement but does have an oral agree-
ment with Respondent which is similar to the provision
in the Teamsters agreement and has union stewards on
duty in Respondent's stores for that purpose, among
others.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Poplaskie was discharged on August 13, 1982, having
been employed by the Company since September 23,
1977. She had had a high school education and at the
time of the hearing herein was 25 years of age. At the
time of discharge she worked in the Customer Accom-
modation Center (CAC) in Respondent's Gratiot Avenue
store where she performed a variety of tasks, including
handling cash, handling lay-away payments by custom-
ers, lost and found property, and other services to cus-
tomers. When she was hired she was shown, and signed,
a copy of the "Company Rules of Personal Conduct"
which include the following provisions:
. . .the following activities are extremely harmful
to the success of our store, and anyone involved in
them will be immediately dismissed.
.Theft
· Distruction or misappropriation of property
· Violation of accepted moral standards
Manipulating, altering or falsifying Company
records (including employment application)
· Dishonesty of any kind
· Abuse of employee discount privilege
In order to control losses through theft by outsiders
who come into its stores, as well as by employees work-
ing in the stores, Respondent maintains a loss prevention
program managed by its loss prevention department. A
loss prevention manager is assigned to each store. He in
turn is supervised by a district manager in the district
headquarters for loss prevention located at another site
who supervises the program for all Respondent's stores
in the Detroit area. Charles Flanagan is the loss preven-
tion manager at the Gratiot Avenue store.
B. Prelude to the Interrogation of Poplaskie
On August 9 there appeared to be a $500 shortage in
the cash office of the Customer Accommodation Center
at the Gratiot Avenue store. The shortage was reported
to Flanagan who began an investigation on August 10 by
asking employees in CAC to identify those on duty
August 9. Poplaskie, who was acquainted with Flanagan
and knew that his job involved investigation of both cus-
tomer and employee thefts, told him that she, Frances
Richardson, and Pat Hasten were on duty in CAC on
August 9.2 It was thus apparent that a cloud of suspicion
hung over those three employees. The next day, August
11, Flanagan conducted the first of two interrogations of
Richardson in the course of which she implicated Po-
plaskie in their joint misappropriation of $25 from lost
and found property. Apparently Richardson worked the
first shift August II and Poplaskie the second. They
spoke briefly with each other as Richardson was leaving
and Poplaskie was arriving. Poplaskie said she had some-
thing to tell Richardson, to which Richardson responded
with a question as to whether she (Richardson) was
fired. In fact Poplaskie had no knowledge on that score
and simply told Richardson that the Company was hold-
ing back the check of another employee named Thomp-
son. Flanagan, with the assistance of Greg Porter, loss
prevention manager at the Grand River store, interrogat-
ed Richardson a second time, apparently on August 12,
which resulted in her reaffirming her misappropriation
with Poplaskie of $25 from the lost and found property,
her signing a written statement admitting responsibility
for $2100 in losses to the store, and her execution of a
promissory note payable to Respondent in that amount.
Poplaskie was off work August 12 but during the day
her supervisor, Debbie Peltier, telephoned her requesting
that she come to work because Richardson had been
called to the office, had not returned, and only one em-
ployee was left on duty in CAC. Poplaskie, however,
was unable to work that day and did not return to the
store until the following day, August 13. In the mean-
time, Flanagan, having with Porter completed the
second interrogation of Richardson, conferred with the
district loss control manager who instructed him to inter-
rogate Poplaskie with the assistance of Porter. At this
point it is obvious, even though Flanagan denied such
was the case, that Poplaskie's job was in jeopardy.
C. The Interrogation of Poplaskie
About an hour after Poplaskie reported for work on
August 13, an employee of the store's personnel office
2 Pat Hasten is one of two union stewards in the store, the other being
Ron Sly.
906
MONTGOMERY WARD & CO.
took her from the CAC area to Flanagan's office in the
basement. Flanagan admits that she then reasonably
could have expected that adverse action would be taken
respecting her employment. According to Porter, she
was being interrogated because of a $500 cash pickup
missing in CAC and the $25 misappropriated from lost
and found property about which Richardson had told
them. In accordance with established company policy
Flanagan ascertained prior to the meeting that two union
stewards, Pat Hasten and Ron Sly, were in the store.
Neither was notified about the interrogation and neither
participated. It is undisputed that during the interview
which followed Poplaskie was not asked whether she
wished to have a union steward present. It is company
policy that, if an employee being interrogated asks for
the participation of a union steward, the interrogation
ceases until a steward is in attendance. The interrogation
then starts again from the beginning.
What followed in Flanagan's office was an extended
interrogation of Poplaskie lasting over 2-3/4 hours.
There were no breaks for Poplaskie although Flanagan
and Porter took two recesses for themselves. Only
Flanagan, Porter, and Poplaskie participated, until near
the interrogation's end when the manager in charge of
the store was called in. Both Flanagan and Porter are ex-
perienced investigators. Flanagan had been loss preven-
tion manager in the Gratiot store for a year and a half,
had 6-1/2 years' experience in loss prevention with the
Company, and had acquired a Bachelor of Arts degree in
criminal justice from Michigan State University. Porter
had been loss prevention manager at the Grand River
store for 14 months, had spent 3 years with the Detroit
Police Department, and had acquired a Bachelor of Arts
degree in administration of justice. The "interview" may
be appropriately described as a psychological "third
degree." It followed an established game plan s using pre-
determined techniques calculated initially to establish a
rapport with, and gain the trust of, the subject employee.
It included implications of established guilt, use of
"loaded questions," 4 frequent retracing of ground al-
ready covered, taking of turns interrogating the employ-
ee, leaving the employee on two occasions to think
things over, ultimately dictating the substance and form
of a confession, and obtaining Poplaskie's promissory
note for $45 to cover the "losses" she had caused during
her 5 years of employment. After this, Flanagan called in
Robert Anderson, at the time the official in charge of the
store, who briefly questioned Poplaskie and then fired
her.
The "interview" began with Flanagan telling Poplas-
kie they were going to discuss some company business
and she would be paid for her time. He then asked her if
she would like the interview on tape. Although she
s Comparable methods have been used in other stores of Respondent in
the Detroit area. See Montgomery Ward & Co., 254 NLRB 826, 828-830
(1981), enfd. as modified 664 F.2d 1096 (8th Cir. 1983).
' Both Flanagan and Porter referred to the "loaded question" which
apparently is standard practice in Respondent's loss prevention system.
Such a question is "meant to trick or trap: a loaded question." The Ameri-
can Heritage Dictionary of the English Language, New College Edition,
1976, p. 765, Houghton Mifflin Co., Boston, Mass. That is how it was
used in this interrogation.
denied she was asked if she wished to have the session
taped, she also indicated she did not know what they
were talking about which suggests some uncertainty in
her mind. Considering this plus the testimony of both
Flanagan and Porter that such an inquiry is standard pro-
cedure and that in fact she was asked, I find that she
was. She said no. Flanagan then began his "presentation"
by introducing himself and Porter, who he said was from
the district security office. Flanagan asked her if she
knew the function of the Company's loss prevention pro-
gram. She apparently did not, because he then described
the duties of loss prevention officers. He detailed their
responsibility to protect company assets, including real
estate, merchandise, and cash, from losses occurring
through the dishonesty of outsiders, customers, and em-
ployees. He noted their use of various devices such as
bugging equipment and cameras. He asked her if she
knew how shoplifters were handled. She agreed she did.
He asked her if she was aware of the many ways in
which the Company was susceptible to losses. Receiving
no response, Flanagan listed various ways, including
shoplifting, accidents of employees or customers, and
employee mistakes, by which the Company sustains
losses. He asked whether she knew of any such losses in
her area. She made no response. He noted the possibility
of unintentional mistakes, such as when a sale rung up on
a register in the wrong department results in an invento-
ry shortage in another department, or when errors occur
in shipping or receiving. He gave examples of intentional
mistakes which cause losses, including in his list the
taking of money from a cash register, ringing up less
than the price of an item, undercharging customers,
abusing the employee discount privilege, and switching
price tags. He asked her to indicate her understanding of
the problem. She attempted to respond, saying she may
have rung up some sales in the wrong way or accepted
payments in the wrong way. He told her he was not re-
ferring to unintentional mistakes. He then described the
extent of the Company's investigations, strongly imply-
ing that they already knew Poplaskie was guilty of dis-
honesty and wanted her to own up to it. Thus, he stated
that there was an ongoing investigation of which she was
part and that, "We were here to resolve that problem
today in this office." Flanagan and Porter then described
their investigative methods as including surveillance of
employees and accumulation of information over sub-
stantial periods of time to achieve full investigations cov-
ering more than one type of loss. Flanagan "told her
when an employee causes a loss we do a more or less
background investigation on that person and see if they
are the type of person that was a good employee or
whether they had management problems-should we at-
tempt to resolve the problem with them within the con-
fines of the store, or do we refer it to outside business."
This was an obvious suggestion that they might call in
the police. He then told her they had conducted an in-
vestigation in her department, that they knew of some
losses, including some she had caused, and that they
were there to resolve the matter in his office at that time.
Poplaskie asked him what losses she had caused, but he
refused to tell her, demanding instead that, in return for
907
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resolving the problem within the confines of the store,
she would have to be 100 percent honest with him. He
told her some employees attempt to deceive him; after
they lie to him and the interview is over, there is nothing
he can do to help them. She then promised she would be
100 percent honest with him. Flanagan then told her he
was going to ask her "a loaded question," which he de-
fined as a question to which he already knew the answer,
and that his purpose was to test whether she would be
honest with him or would attempt to deceive him. He
asked her to tell him the last time she had caused a loss
to the Company through means other than an uninten-
tional mistake. According to both Flanagan and Porter,
she made no response. Apparently with nothing further
being said, Flanagan passed the interrogation to Porter.
According to Poplaskie, the putting of the loaded
question following Flanagan's presentation involved
somewhat more. She testified that about 30 minutes into
the interview, "Well, Mr. Flanagan asked me when was
the last time I took money out of the register for my
own personal use. I didn't know what they were talking
about. So I asked it again. He says, 'Well, when is the
last time you took it out for your own use?' I asked
again, and he said, 'I am talking about embezzlement,
don't you know how serious that is?' I said, 'Hey, wait a
minute. There should be somebody else here besides you
two, I need somebody else here."' Counsel asked her
whether she indicated who she wished present and she
testified, "I asked for representative, somebody else. I
said, 'Shouldn't there be somebody else here, a lawyer, a
representative, somebody."' She further testified that
Flanagan replied, "Oh, no, it will come up in court." She
also testified that she raised the matter of a representa-
tive a second time. According to her, "I said shouldn't
there be somebody else here besides you two." She re-
called that Flanagan replied, "No, no, it would all come
up in court." But she did not recall, even approximately,
when this occurred during the session, or how much
time elapsed between the first and the second occur-
rence, or whether it was toward the end, or whether she
mentioned an attorney or representative at that time.
Both Flanagan and Porter denied that the word embez-
zlement was used during the long interrogation. Flana-
gan specifically denied that Poplaskie, either by question
or statement, raised the issue of whether someone else
should be there besides the two investigators, or that an
attorney or representative or union steward should be
there. He also denied saying, "It will come up in court."
Porter denied that she asked if someone else should be
there, that she said anything of that nature, that the
word representative was mentioned during the interview,
and that she asked for a union steward or for an attor-
ney. It is undisputed that at the end of the entire interro-
gation she asked if she would need a lawyer. But as to
whether, during the body of the interrogation, she asked
for a union steward or generally for a representative or
an attorney, I find she did not, crediting the testimony of
Flanagan and Porter. They corroborate each other. They
each gave a clear-cut, orderly, account of the sequence
of the interview, while Poplaskie generalized more, was
often unable to identify whether it was Flanagan or
Porter who had asked or stated something to her, and re-
peatedly was unable to recall with particularity what oc-
curred. All in all she seems the least reliable witness of
the three who were present.
According to Porter, "After Mr. Flanagan had asked
her the loaded question and she didn't respond, that is
when I took over the interview." Porter in essence re-
peated the presentation Flanagan made, describing the
function of the loss prevention program, the methods of
investigation, and the need to resolve questions raised.
He told her this particular investigation had been ongo-
ing for several months and that they had no doubt in
their minds she was involved in some losses, and that her
involvement was the main reason for the interview. She
said nothing. So Porter put the loaded question to her,
"When was the last time that you did something that
would cause a loss to the Company?" According to
Porter, Poplaskie answered, "I don't know what you're
talking about." He then explained in detail how an em-
ployee in CAC could cause losses to the Company. He
asked her about refunds. He referred to cash pickups, to
money in the cash registers, to voids, and to the lay-
away refunds. She still did not respond. The two interro-
gators then told her to think about it and they left her
alone in the room for about 15 minutes, leaving the door
slightly ajar.
When they returned, Flanagan asked her whether she
had thought about some of the losses she had caused.
She said no. Flanagan described again their methods of
gathering information. He said that many times they
gather information from other employees and she should
think about that. Porter told her she was not the only
employee involved in the investigation nor was she the
first nor the last that they would talk to. After several
minutes of silence she inquired if they were talking about
Frances Richardson. Flanagan said that was part but not
all of it, and asked her if she wanted to tell him about
herself and Frances. She then told them about the inci-
dent a few weeks earlier in which she and Richardson,
while going over lost and found items together in the
CAC area, discovered a wallet containing $25 in cash
which they divided between themselves by making
change in the cash register. This, of course, confirmed
the information they already had from Richardson.
Flanagan continued by indicating, according to Porter,
that Poplaskie was responsible for other losses. He asked
her to think back further. She replied she could not re-
member any other losses she caused. He then repeated
the various ways in which she could have caused losses.
He asked about refunds. She said she could not remem-
ber. He asked about cash from the register. She replied
she had taken cash in the past but could not remember
the dates and amounts and she asked him for information
as to dates and amounts. But Flanagan refused, saying
the purpose of the interview was for her to tell them
what she had done, not the reverse. She said again that
she could not remember. In this manner Flanagan asked
about each possible type of loss. To most of these queries
she responded that she could not remember. To some,
however, according to Flanagan, she gave specific re-
sponses. Thus, when asked whether she had removed
merchandise from the store, she said no. When asked if
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MONTGOMERY WARD & CO.
there was anything else in the CAC area that she could
have caused a loss with, she replied that when she first
became an employee she did not pay for gift wrapping,
that no one did. 5 On several occasions she asked for time
to think and her interrogators simply waited. After one
of these pauses she mentioned that she had violated the
employee discount privilege by purchasing a radio for
her brother on one occasion and on another occasion
some insulation for a brother-in-law while they were not
living in the same household as she, and that when she
left home she left her discount card with her mother but
she did not know if her mother used it.6
Finally, after Poplaskie repeatedly had indicated her
inability to recall and her need for time to think, Flana-
gan gave her a sheet of paper down the center of which
he had drawn a line. He wrote "cash" on the left side
and "discounts-gift wrap etc." on the right. He told Po-
plaskie to sit down and think about it and if she thought
of anything to write it down on the paper. He and
Porter again left the room for 10 to 15 minutes. On their
return the paper was still blank. Flanagan asked her why
she had written nothing on it. She replied that she could
not remember anything. He then instructed her to write
down the things she already had told them. She then
wrote on the right side the following:
Parents had disc card for about a year. I wasn't
living at home. First 2 years I was here I didn't pay
for gift wrap. Got radio with disc for brother that
didn't live with.
On the left side of the paper under cash she made no
entry at all. Subsequently, Flanagan wrote below Poplas-
kie's writing the figures 15, 17.50, and 12.50, which, re-
spectively, were the discount for the radio for her broth-
er, the discount for the insulation for her brother-in-law,
and half of the money she and Richardson had taken
from lost and found. He entered the total of $45.
Flanagan then again asked her about taking cash from
the registers or from the cash office or from cash pick-
ups. She gave no response but asked for some dates and
amounts. Flanagan again said they could not do that,
that she must remember herself. Poplaskie indicated she
needed time to think. They all sat for a time and then the
interrogators again asked her if she had thought of any-
thing and she answered no, that she was still trying to
think. They continued to press her by asking her again
about certain types of losses. She admitted generally
having caused some losses but could not recall dates and
amounts. Flanagan's testimony is to the effect that she
admitted probably having caused losses other than those
she had detailed and probably having stolen cash out of
the cash office but that she could not remember. Porter's
account indicates that she admitted having caused losses
but could not recall dates or amounts. Her own testimo-
ny indicates that she felt pressured in that she felt she
6 Flanagan asserts that everyone pays for gift wrap, but he did not spe-
cifically refer to the period of her early employment.
I Poplaskie testified that as a store employee of several years she was
well known to other clerks and when she purchased an item she auto-
matically was given the discount without having to display her discount
card.
had to tell them something, but she could not remember
so she kept asking for more time to think, hoping she
could satisfy her interrogators. I credit her account.
Porter finally decided to end the interrogation and to
memorialize in a statement what she had already admit-
ted. Before taking the statement Porter told her they
would have to have a written statement acknowledging
the things they had discussed. She asked the purpose of
the written statement and he replied that they needed
something to review with management so there would
not be hearsay. According to Flanagan, Porter said the
statement was for the use of upper management to
decide whether or not to prosecute her. Poplaskie felt if
she did not comply she would go to jail. Porter supplied
her with pencil and paper and told her item by item the
substance of what to write and the form in which to
write it. He did not dictate the body of it verbatim. She
wrote it out following his instructions over a period of
20 minutes and then signed each of the two pages. Flana-
gan and Porter signed as witnesses. The text of the state-
ment is as follows:
My name is Ilene Poplaskie, I am employed at
Montgomery Ward's, since Sept. of '78. During my
employment I've cost the company losses of ap-
proximately ($45.00) forty-five dollars. I did this by
stealing ($25.00) twenty-five dollars out of lost &
found and splitting it with Frances Richardson. I
did this last month on a Sunday. I've allowed
family members not living with me, or not immedi-
ate family to make purchases using my discount
card. Once was for some installation [sic] for my
brother-in-law. My parents may have used my dis-
count card while I wasn't living there. I've realized
what I've done is wrong & I could be prosecuted or
terminated. Everything I've written is true. No
threats or promises were made on me to write this.
I am sorry for what I've done. I can't recall taking
any cash from the register. I'd like to pay the com-
pany back the ($45.00) forty-five dollars.
The S45 figure in the statement was arrived at by adding
up the estimated value of the discount privilege viola-
tions and half of the $25 taken from lost and found.
After Poplaskie completed the statement, Flanagan filled
out a form of a promissory note from her to the Compa-
ny in the amount of $45. He asked her to sign it and she
did.
Poplaskie testified that she felt pressured during the in-
terrogation. Unquestionably, considerable pressure was
put on her by her interrogators. Near the beginning of
the meeting Flanagan asked Poplaskie what her future
plans were. She replied that she enjoyed working at the
store and would like to continue. According to her, he
then commented, "If you are worried about your job,
you might as well forget it, it is gone." I credit her testi-
mony on this. Although Flanagan denied he made such a
remark, I do not credit his denial. Richardson had al-
ready implicated Poplaskie and, in view of that knowl-
edge, even though the interrogation of Poplaskie was not
completed, her job was in jeopardy. Flanagan's statement
was not unrealistic in the circumstances. In so finding, I
909
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do not conclude that her fate was at that point irrevoca-
bly sealed. For one thing, Flanagan and Porter carried
on with their extensive interrogation of Poplaskie. Nei-
ther had authority to decide her future with the Compa-
ny. And she was finally fired by another official, who
was in charge of the store, only after he reviewed the
results of the interrogation and asked her a question.
Nevertheless, even though Flanagan's remark was an
opinion and not a decision, it put added pressure on her
because the logical inference was that the consequences
of the interrogation were much more serious than mere
loss of her job.
Poplaskie also testified credibly that after her interro-
gators took their second recess and returned to find she
had written nothing on the sheet of paper on which she
was to list intentional losses she had caused, one of them
stated that she would not cooperate and they were going
"to call," not indicating who they were going to call.
She thought they meant the police, in part because of
Porter's remark that, "We don't know where you're
going to be tonight," implying Poplaskie might spend the
night in jail. Flanagan denied saying, "If you won't co-
operate we will have to call." Porter denied saying that
he did not know where she would be that night. He did
admit that "tonight" was mentioned in connection with
Poplaskie's trouble in remembering, and that Poplaskie
suggested that she go home for the night to think about
matters and call them later, that she possibly might be
able to give them more information. According to
Porter, they told her that would be too late, that the
time to think about it was now. In this context she rea-
sonably concluded that she was threatened with going to
jail. The validity of this conclusion is supported by their
emphasis on the importance of resolving matters within
the store rather than outside, by Porter's admission that
an outside resolution could mean prosecution, and by the
fact that at the end of the interrogation Poplaskie asked
Flanagan if she was going to jail and if she would need a
lawyer. In view of this I do not credit the above denials
of Flanagan and Porter and do credit the substance of
Poplaskie's account that they led her to believe that she
might spend the night in jail if she did not cooperate.
Poplaskie also testified that Porter and Flanagan also
asked her how her family and her boy friend would feel.
Flanagan denied asking her how her family would feel
and Porter denied asking her how her boy friend would
feel. But she testified in a credible manner about this, and
considering that such questions would be logical in the
circumstances, I credit her account. She also testified
credibly that near the end of the interrogation they told
her, "Well, just like Frances [Richardson] you can walk
right out of here; we know what you did. She told us
and just like her you can do it too." Although Flanagan
denied that he said this, such a comment fits with the
generally heavy emphasis by both interrogators on reso-
lution of problems within the confines of the store. In
the circumstances I credit Poplaskie's account. She twice
testified that on one occasion Flanagan asked her if she
would like to take a lie detector test, that she was con-
fused and could not believe what was happening and
therefore gave no response, and that he then said, "Well,
if you think this is bad, the lie detector would be worse."
She further testified, "Well, they started laughing be-
tween each other because everything would come up on
the lie detector test." I credit her detailed account.
During the interview she repeatedly pleaded inability to
remember and the suggestion that she take a lie detector
test would be logical in those circumstances. Although
Flanagan denied he mentioned lie detector, his denial
was general. Porter was not asked about it at all.
D. The Discharge
After the interrogators obtained Poplaskie's written
statement and her promissory note, Flanagan picked up
the telephone intending to call the store operator. As he
did so, Poplaskie, thinking that he was calling the police,
asked apprehensively, "Am I going to jail, do I need a
lawyer?" He replied that she was not going to jail and
did not need a lawyer at that time. He then called the
telephone operator, requesting that the "staff member"
on duty, who would be the only person in the store with
authority to discharge an employee, be called down to
his office. In about 5 minutes Robert Anderson, manager
of the Auto Center in the store and the staff member in
charge of the store at that time, appeared. Flanagan
showed Anderson Poplaskie's statement, which Ander-
son read. Anderson turned to Poplaskie and asked her if
it was true. She indicated it was.7 Anderson told her he
would have to terminate her at that time. He then left.
After Anderson left Flanagan asked her, "Do you feel
you were treated fairly?" She replied, "Probably so." He
also asked her not to speak to anybody in the CAC area
because his investigation had not been concluded re-
specting the loss of the $500 pickup. He admitted in his
testimony that this admonition included that she not talk
with union steward Pat Hasten (who worked in the
CAC area). Poplaskie agreed she would remain silent.
Poplaskie testified, "Then I asked Mr. Flanagan what
happens from here or what happens to me. He said well
he's going to have to send this [presumably her confes-
sion] into District and if they are going to prosecute me
he will let me know. Otherwise, he doesn't want to see
my ass any more, or, pardon me, maybe talk to my ass. I
don't recall." I credit her in this respect. Flanagan only
denied using the word "ass" and did not recall whether
he said he did not want to see her or hear of her again.
Flanagan then called a guard to escort Poplaskie while
she picked up her belongings and left the store. The
"interview" had lasted over 2-3/4 hours.
E. Discussion on the Right to an Attorney
The General Counsel contends that, even if she did
not earlier ask for a representative, Poplaskie triggered
her Weingartens rights when Flanagan reached for the
telephone near the end of the session and she asked if she
was going to jail and if she would need an attorney. For
Poplaskie the interrogation was not over because Ander-
son, who had the authority to discharge her, thereafter
I I base this finding on the credited testimony of Anderson, Porter,
and Flanagan. Poplaskie testified that when Anderson asked her if the
statement was true, she looked at Flanagan and said, "He says it's true."
5 NLRB v. J. Weingarten, 420 U.S. 251 (1975).
910
MONTGOMERY WARD & CO.
came in, continued the investigation by reading her state-
ment, questioning her as to whether it was true, and, fi-
nally, on the basis of her answer together with her state-
ment, decided to discharge her. See Coyne Cylinder Co.,
251 NLRB 1503 (1980). Counsel argues that because an
employee need only seek Weingarten representation in
general terms in order to invoke that right (Southwestern
Bell Telephone Co., 227 NLRB 1223 (1977)), and because
the request may be in question form and still be effective
(Illinois Bell Telephone Co., 251 NLRB 932, 938 (1980)),
and because the right to representation includes the right
not only to have union agents but also fellow employees
or witnesses (Illinois Bell Telephone Co., supra; Anchor-
tank, Inc., 239 NLRB 430 (1978); Glomac Plastics, 234
NLRB 1309 (1978); Ohio Masonic Home, 251 NLRB 606
(1980)), the right should be extended to include a request
for a lawyer. The basic difficulty with this contention is
that, as pointed out by the Supreme Court in Weingarten,
the right to representation is based on the employee stat-
utory right under Section 7 of the Act to engage in con-
certed activities with other employees.' Exercise of such
a right does not appear to extend to an outside profes-
sional such as a lawyer uninvolved in the employer-em-
ployee relationship. As noted in the General Counsel's
brief, no Board ruling indicates that the Weingarten right
extends to a request for a lawyer. There is, on the other
hand, some authority indicating the contrary. In Consoli-
dated Casinos Corp., 266 NLRB 988 (1983), Administra-
tive Law Judge Clifford Anderson, at 1008, held that the
Weingarten right did not extend to a request for an attor-
ney. The Board adopted his decision without comment
on this point, but did so with the reservation that its
adoption was made in the absence of exceptions by the
respondent and should not be construed as an endorse-
ment of all of the judge's findings and conclusions. In
agreement with Judge Anderson, I conclude here that
when Poplaskie asked Flanagan if she needed a lawyer,
she did not thereby make a request within the meaning
of the Weingarten rule.
F. Discussion on the Need for an Appropriate Request
for Representation
The situation here poses the question whether, even
though Poplaskie did not affirmatively request represen-
tation as allowed by the Weingarten rule, she effectively
was denied that opportunity by Respondent's agents.
Thus, the so-called interview, carried on by two profes-
sional investigators pursuant to a preestablished scenario,
using techniques which took advantage of the unrepre-
sented employee's psychological vulnerability, was an in-
timidating and an entrapping situation for the unaccom-
panied employee. And the record here leaves no doubt
that it was intended to be such.10 Such methods neces-
sarily diminish the possibility that an employee will take
advantage of the rights afforded by the Act. The most
obvious reason for management using such methods is its
legitimate need to control and to counteract in-house dis-
honesty among its employees. Another, perhaps second-
@ Weingarten, supra at 256-257.
10 As already noted, such methods are in use in Respondent's stores in
the area. See Montgomery Ward & Co., supra (254 NLRB 826, 828-830).
ary, apparent motive is to avoid, if possible, triggering
the Weingarten right, so that the investigation may be
carried out unhampered by the presence of anyone who
might counsel the subject employee. Porter denied that
their methods were designed to circumvent Weingarten,
but there can be no doubt, based on the circumstances
described by him and by Flanagan, that their procedures
avoid the involvement of a representative unless the em-
ployee affirmatively demands one. Thus, although Flana-
gan made sure two union stewards were in the store, nei-
ther he nor Porter mentioned that to Poplaskie nor asked
her if she wished either to be present. In testifying about
the company policy to stop the interview if the employ-
ee requests a union steward, they both described the em-
ployee's right in limited terms, that is, to have a "stew-
ard" present, not mentioning any other type of union
representation or other employee participation pursuant
to the Section 7 rights to engage in concerted activi-
ties." Many of their methods would likely have been
less effective if another person had been present. These
include the technique of taking turns interrogating the
subject, the re-plowing of ground already covered in the
interrogation, the long duration of the session, the inter-
rogators twice taking recesses while leaving the employ-
ee isolated to think things over, and, at least in the em-
ployee's mind, keeping her under restraint. a Of course
an employee in an investigatory interview is not required
to have a representative if the employee does not wish
one. The employee's desire in this regard is usually indi-
cated by whether a request for a representative is, or is
not, made. Here Poplaskie did not request a representa-
tive during the body of the interrogation. But her confu-
sion and the pressure exerted on her during the lengthy
interrogation may well have prevented her from affirma-
tively expressing her desire if in fact she wished repre-
sentation. In such circumstances, silence, as a measure of
the employee's wishes regarding representation, is sus-
pect. This employer's methods robbed silence of signifi-
cance in assessing Poplaskie's wishes to have, or not to
have, representation, and, in fact, threw additional doubt
on what those wishes were. To avoid deliberate under-
cutting of Weingarten by using methods which dimin-
ished the employee's ability and opportunity to exercise
those rights, Respondent could easily have clarified what
her wishes were. Neither Flanagan nor Porter asked her
if she wished to have a union steward present. Porter
testified that he believed she knew she had the right to a
union steward because she was a longtime employee and
he thought that the Union had informed employees gen-
erally that they had such a right. But even if that were
so, and I assume it was, it was also true that Poplaskie,
as was apparent from her testimony and demeanor at the
hearing, was not a paragon of independent, clear, think-
ing and could easily be influenced by the situation con-
"' There is no evidence here of a waiver of any of these rights.
"s Poplaskie credibly testified that she felt she was under restraint and
the circumstances support that belief. This is so even though there was a
telephone in the room, which she did not think to use, and even though
during the two recesses, when the interrogators left her alone, the door
was left ajar.
911
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fronting her. The evidence relating to the interview indi-
cates she was in fact both confused and intimidated.
Weingarten rights ordinarily are triggered upon the re-
quest of the affected employee. In determining what sort
of requests trigger these rights, the Board applies a broad
standard. They have been triggered by an employee
asking if he needed a witness, Bodolay Packaging Machin-
ery, 263 NLRB 320 (1982); by an employee saying he
would not sign a statement unless he had a union repre-
sentative present, Southern Bell Telephone Co., 251
NLRB 1194 (1980); and by an employee's request for his
"lawyer," where "lawyer" was an idiomatic reference to
a union steward, General Motors Corp., 251 NLRB 850
(1980). In the present case, no form of triggering request
was made. It is clear, however, that the security person-
nel used techniques which easily could have prevented
this confused, intimidated employee from making any af-
firmative request for the protection of her legal rights. It
would honor form over substance to differentiate tech-
niques which prevent such a request from a direct,
verbal denial of the employee's rights. As the Board
noted in Anchortank, Inc., supra at 431, "the Court's pri-
mary concern [in Weingarten] was with the right of em-
ployees to have some measure of protection when faced
with a confrontation with the employer which might
result in an adverse action against the employee." The
Supreme Court did not specifically state that employees
do not have the right, under certain circumstances, to be
affirmatively informed of the right to Weingarten protec-
tions. After noting that, "[s]econd, the right [to represen-
tation] arises only in situations where the employee re-
quests representation," the Court stated, "[i]n other
words, the employee may forego his guaranteed right
and, if he prefers, participate in an interview unaccompa-
nied by his union representative." Weingarten, supra at
257. The qualifying statement indicates that, in an effort
to protect "fearful and inarticulate" employees, the
Court deems that employees lose their Weingarten pro-
tections only when they deliberately forego their "guar-
anteed right" to those protections. I do not understand
the Court holding to be that the right to representation
does not exist until an affirmative request is made. The
right is founded on the employee's statutory right under
Section 7 of the Act to engage in concerted activities.
The Court is indicating that the employee has an option
to use or not to use that guaranteed right. It would be an
affront to that ruling to allow employers to impinge on
that election by means of investigative techniques.
The Court further noted that "[r]equiring a lone em-
ployee to attend an investigatory interview which he
reasonably believes may result in the imposition of disci-
pline perpetuates the inequality the Act was designed to
eliminate, and bars recourse to the safeguards the Act
provided 'to redress the perceived imbalance of econom-
ic power between labor and management."' Id. at 262. In
a situation such as the present one, where the interroga-
tion techniques used by the Company's trained security
personnel so exacerbated that imbalance as to affect the
employee's continued attendance without representation,
the employer should at least determine that the employee
has affirmatively decided to forego her guaranteed right
to that representation. In reaching this conclusion, I note
the Board's interest in broadly defining the "triggering
request" of Weingarten; the Court's concern that the "in-
equality the Act was designed to eliminate" not be per-
petuated; and the Board's statement, in extending Wein-
garten protections to include the right to pre-interview
consultations between the affected employee and his rep-
resentative, that "[p]erhaps all we are really suggesting is
that knowledge is a better basis than ignorance for the
successful carrying on of labor-management relations."
Climax Molybdenum Co., 227 NLRB 1189, 1190 (1977).
There, of course, would be no question but that Re-
spondent would have adequate grounds for discharging
Poplaskie if her Weingarten rights were not involved.
Her merit, or lack of merit, as an employee, however, is
immaterial to a consideration of the issue of whether her
Weingarten rights were infringed. Dishonest, as well as
honest, employees are guaranteed those rights. Also,
nothing in this decision should be construed as a finding
that Respondent's investigative methods were inappropri-
ate for purely security purposes. Whether or not they
were is not at issue here. What is pertinent and crucial is
that Respondent's deliberate conduct not only threw
doubt on what, if any, intentions Poplaskie entertained
respecting representation, but operated effectively to
reduce the possibility she would exercise those rights.
Accordingly, I find Respondent interfered with her
rights, guaranteed by Section 7 of the Act, to have
mutual help and assistance from fellow employees.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Ilene Poplaskie on August 13, 1983,
as a result of an interrogation during which she reason-
ably could expect her employment to be adversely af-
fected, and in which Respondent's security officials inter-
fered with her exercise of her right to have a union stew-
ard present, Respondent threatened, coerced, and re-
strained her in the exercise of rights guaranteed by Sec-
tion 7 of the Act and thereby committed unfair labor
practices prohibited by Section 8(a)(l) of the Act.
4. Those unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found Respondent engaged in unfair labor
practices within the meaning of Section 8(aXI) of the
Act, I recommend it be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
By way of remedy the General Counsel seeks, among
other things, reinstatement of Poplaskie to her former
position along with backpay. Reinstatement, however, is
not appropriate in these circumstances because in the
course of the hearing herein Poplaskie admitted that she
and Frances Richardson together had misappropriated
$25 from Respondent's lost and found property as well
as violations of company rules governing her employee
912
MONTGOMERY WARD & CO.
discount privilege with respect to purchases of insulation
for her brother-in-law and a radio for her brother. In
these circumstances, and considering that Respondent
has not shown that its decision to discharge Poplaskie
was not based on information obtained in what I have
found to be an unlawful interview, the appropriate
remedy does not include her reinstatement but does re-
quire that she be made whole for any loss of earnings be-
tween her discharge on August 13, 1982, and the hearing
herein on April 13, 1983, when she admitted the above-
noted derelictions. See Montgomery Ward & Co., 254
NLRB 826 (1981). Although the Circuit Court of Ap-
peals for the Eighth Circuit not only denied reinstate-
ment but also refused to order backpay for the employee
involved in that case13 and the Board appears to have
accepted the Court of Appeals decision for that case, the
Board has since referred with approval to its own hold-
ing respecting remedy in the underlying case. See Hill-
side Avenue Pharmacy, 265 NLRB 1613 (1982). It is also
appropriate that Respondent be ordered to expunge and
physically remove from its records and files any refer-
ence to the unlawful interview with Ilene Poplaskie.
Backpay for Poplaskie shall be computed with interest
thereon in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977). 14
[Recommended Order omitted from publication.]
1s Montgomery Ward d Ca v. NLRB, 664 F.2d 1095 (8th Cir. 1981).
4 See generally Isis Plumbing Ca, 138 NLRB 716 (1962).
913